MISC 16-000536

July 11, 2018

Plymouth, ss.



On September 14, 2016, Ellis B. Withington and Jennifer M. Withington; Nathan N. Withington, as Trustee of Whip's Farm Trust; Ralph W. Pausig and Lorna R. M. Pausig; Dennis R. Smith and June M. Smith; Louise W. Gillock; Sara E. Tallman, as Trustee of Tallman Nominee Trust; Melanie Schneider; and Lorenz B. Cueni, as Trustee of One Hundred Seventy Three Rear Old Sandwich Road Realty Trust (collectively, plaintiffs) filed a verified complaint against Timothy Grandy, Paul McAlduff, Robert Bielen, Malcolm MacGregor, and Kenneth Buechs, as they constitute the membership of the Planning Board of the Town of Plymouth (collectively, Planning Board); and T&K Retail, LLC (T&K). [Note 1]

As originally filed, plaintiffs commenced their action pursuant to G. L. c. 41, § 81BB. Plaintiffs are appealing the action of the Planning Board endorsing an Approval Not Required (ANR) plan pursuant to the provisions of G. L. c. 41, § 81P. T&K answered the complaint on October 4, 2016, and asserted an affirmative defense of lack of subject matter jurisdiction. Plaintiffs filed Motion to Amend Complaint (motion to amend) and submitted an amended complaint on October 6, 2016, correcting the grounds for bringing the action to G. L. c. 249, § 4. The Planning Board submitted its answer on October 6, 2016. [Note 2]

In accordance with Land Court Standing Order 2-06, the Planning Board filed on September 8, 2017, Administrative Record Pursuant to G. L. c. 249, § 4 (ROP), and Certification of Record. [Note 3] The Planning Board filed on October 27, 2017, a memorandum of law in support of cross-motions for judgment on the pleadings. Three days later, plaintiffs and T&K submitted their motions for judgment on the pleadings, supporting memoranda, and sixty-one stipulated exhibits. [Note 4] Simultaneously, T&K filed a motion for summary judgment arguing plaintiffs lack standing to maintain this appeal. Plaintiffs and T&K appeared and argued the cross-motions on November 14, 2017, before Scheier, J. [Note 5]


The following facts are taken from the uncontested allegations of the verified complaint, the ROP, and stipulated exhibits:

1. On January 21, 1986, the Planning Board voted to approve a certain definitive subdivision plan of land dated December 23, 1985 (1985 plan), creating four lots (1986 decision). (Ex.7) As depicted on the 1985 plan,

Lot 1A-6 contained 72.9 acres,

Lot 1A-7 contained 29.85 acres,

Lot 4A-2 contained 38.06 acres, and

Lot 4A-1 contained 27.66 acres. (Ex.6)

Collectively, Lots 1A-6, 1A-7, 4A-2, and 4A-1 are referred to herein as "locus."

2. The 1986 decision set forth six specific requirements and granted twenty-two waivers of the Rules and Regulations Governing the Subdivision of Land, Plymouth, MA, as amended.

3. Additionally, the 1986 decision stated that:

"[t]his approval is subject to a covenant which sets forth specific conditions of approval, to be executed prior to the endorsement of the Definitive Plans and to be recorded therewith. Finally, the Planning Board voted to make it expressly understood that this approval does not grant any rights to the applicant, assigns, heirs, or successors in title other than those contained within said covenant, and that the improvement of the existing cartpath from Jordan Road to the limits of the locus under the Subdivision Control Law does not grant or imply any rights or determination, or finding that said way is suitable access for the purposes of subdivision by Approval Not Required Plan."

4. Between February 14, 1986, and April 2, 1986, the owners of record of locus and prospective transferees of certain lots shown on the 1985 plan (covenantors) executed an instrument (Covenant) by which they covenanted and agreed with the "Planning Board . . . and with one another" in a variety of respects. Specifically in Paragraph 7 a), the covenantors agreed for themselves and their successors that Lot 1A-6, Lot 1A-7, and Lot 4A-2 "shall never be subdivided into more than two parcels each of which shall be used only for single family residential purposes and uses accessory thereto," while Lot 4A-1 "shall never be subdivided into more than three parcels each of which shall be used only for single family residential purposes and uses accessory thereto." The members of the Planning Board executed the Covenant on June 3, 1986. (Ex. 8) [Note 6]

5. The last paragraph of Paragraph 7. a) of the Covenant provides that:

"the covenantors and all successors . . . do hereby waive their rights to subdivide the lots pursuant to the provisions of Ch. 41 except as provided in the following paragraphs. The term 'subdivided' shall include the process of the division of the lots into parcels by means of a plan not requiring approval under the subdivision control law. Said plan or plans shall 1) refer to this covenant and, 2) depict the 'residential area' and 'conservation area,' if any, of each parcel and the balance of the lot, if any, as 'conservation area.' The balance of the lot shall not be considered a parcel within the meaning of this Paragraph 7."

6. From January 21, 1986, until January 16, 1995, the configuration of the four lots that constituted locus remained unchanged.

7. On January 17, 1995, the Planning Board endorsed an ANR plan dated August 10, 1994 (1994 plan), that subdivided Lot 4A-2 into Lot 4A-3 containing 35.99 acres, PCL. B with an area of 29,626 square feet, PCL. C containing 31,449 square feet to be combined with Lot 3B-1 (a non-locus lot), and PCL. D measuring 34,932 square feet to be combined with Lot 4-1A (a non-locus lot). [Note 7] (Ex.25) A single family residence stands on both Lots 4-1A and 4A-3.

8. The Planning Board endorsed on March 21, 1995, an ANR plan of even date (1995 plan), that subdivided Lot 1A-7 into Lot 1A-8, containing 6.67 acres; Lot 1A-9, containing 11.58 acres; and Lot 1A-10, containing 11.28 acres. (Ex. 17) A single family residence stands on both Lots 1A-9 and 1A-10, while Lot 1A-8 is designated as "to be used for recreation/conservation activities per covenant" on the 1995 plan.

9. On May 22, 2000, the Planning Board endorsed an ANR plan dated May 6, 2000 (2000 plan), that subdivided Lot 4A-1 into Lot 4A-4, containing 2.91 acres, and Lot 4A-5, containing 24.75 acres. (Ex. 12) Lot 4A-4 contains a single family dwelling. Lot 4A-5, owned by T&K, remained vacant land until 2009.

10. On August 5, 2002, the Planning Board endorsed an ANR plan dated July 24, 2002 (2002 plan), that subdivided Lot 1A-6 into Lot 1A-16 containing 16.60 acres, Lot 1A-17 containing 10.47 acres, Lot 1A-18 containing 14.95 acres, and Lot 1A-19 containing 30.88 acres. (Ex. 9) Lots 1A-16 and 1A-17 are each designated on the 2002 plan as "unbuildable parcel." Lot 1A-18 is current a vacant parcel of land, while a single family residence stands on Lot 1A- 19.

11. The Planning Board on April 23, 2007, endorsed an ANR plan dated March 31, 2007 (2007 plan), that subdivided Lot 4A-5 into Lot 4A-6 containing 10.00 acres, and Lot 4A-7 containing 14.83 acres. (Ex. 13) T&K owns both lots. In 2009, T&K built a single family dwelling on Lot 4A-7.

12. The instant action arose from T&K's submission to the Planning Board on August 25, 2016, of an ANR application and plan entitled "Plan of Land in Plymouth, Mass. Prepared for T&K Retail, LLC" dated August 17, 2016 (2016 plan), seeking to further subdivide Lots 4A- 6 and 4A-7. (ROP 1). The 2016 plan depicts five lots: Lot 4A-8, Lot 4A-9, Lot 4A-10, Lot 4A- 11, Lot 4A-12. (Ex. 14).

13. At a hearing held on September 12, 2016, the Planning Board received documents and public comment from those in attendance concerning the 2016 plan and the existence of the Covenant. By a vote of 3-2, the Planning Board voted to endorse the 2016 plan. (ROP Supp. 28- 29).

14. All the lots shown on the 2016 plan are vacant, except for Lot 4A-9 on which T&K constructed the single family dwelling in 2009.


In the absence of a statutorily prescribed right of judicial review of an endorsement of an ANR plan, the review is in the nature of certiorari. See Stefanik v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995). An action seeking judicial review in the nature of certiorari can be brought to "correct errors in proceedings which are not according to the course of common law, and which proceedings are not otherwise reviewable by motion or by appeal." G. L. c. 249, §4.

In a certiorari review, "the court is limited to correcting 'substantial errors of law apparent on the record adversely affecting material rights.'" FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). Therefore, a judge's review is "limited to what is contained in the record of the proceedings below." Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999). In seeking to overturn the action of the Planning Board, plaintiffs here must establish that the decision of the Planning Board "was arbitrary and capricious or unsupported by substantial evidence." Dubuque v. Conservation Comm'n. of Barnstable, 58 Mass. App. Ct. 824 , 828-829 (2003). "A decision is arbitrary or capricious . . . where it 'lacks any rational explanation that reasonable persons might support.'" Frawley v. Police Comm'r of Cambridge, 473 Mass. 716 , 729 (2016), quoting Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1 , 6 (2002). The "substantial evidence" test applies when the question is "not the criteria to be applied but whether, within announced criteria, the determination that there would be injury to the land in question was supported by substantial evidence." Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565 , 568 (1996).


Standing to challenge a governmental decision "is an issue of subject matter jurisdiction." Indeck Maine Energy, LLC v. Commissioner of Revenue, 454 Mass. 511 , 516 (2009). "Certiorari review . . . may only be available if the plaintiff makes a requisite showing of a reasonable likelihood that it has suffered injury to a protected legal right." Higby/Fulton Vineyard, LLC v. Board of Health of Tisbury, 70 Mass. App. Ct. 848 , 850 (2007). In seeking review pursuant to G. L. c. 249, § 4, plaintiffs must show "they have suffered an injury different in nature or magnitude from that of the general public." Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct. 539 , 543 (2004). Cf. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 698 n. 10 (2012) (noting "[o]nly one of the parties in a zoning appeal must be an 'aggrieved person' under G. L. c. 40A to establish standing to challenge a zoning decision).

By endorsing the 2016 plan, the Planning Board determined that the lots shown thereon met the criteria for approval under G. L. c. 41, § 81P, as to area, frontage, and access. Those lots then and remain today undeveloped parcels, except for the dwelling standing on Lot 4A-9, formerly part of Lot 4A-7, as shown on the 2007 plan. Plaintiffs claim the endorsement of the 2016 plan injures their private legal rights as set forth in the Covenant. Among the concerns they have identified, plaintiffs contend they will suffer harm from increased density, greater traffic and noise, loss of woodland, and diminution of property values. T&K argues, and I concur, that each of plaintiffs' articulated concerns are merely speculative at this time.

During oral argument, plaintiffs conceded they will suffer no harm if building permits are not issued for the development of the vacant lots shown on the 2016 plan. Rather, plaintiffs base their standing, as well as their claims on the merits of this action, on the fact that one plaintiff is an original covenantor, while the remaining plaintiffs are successors in interest to other original covenantors. As such, plaintiffs insist they have the legal right to enforce the provisions of the Covenant, thereby prohibiting the development of more than three lots on the original Lot 4 A-1. [Note 8]

The outcome of this action thus turns on whether plaintiffs are correct in their argument that they have the right to enforce the Covenant. The parties agree that the Covenant is not governed by G. L. c. 184, § 23. Rather, the Covenant consists of a number of "land use restrictions imposed as a condition to the discretionary grant of regulatory approval under the police power." Samuelson v. Planning Bd. of Orleans, 86 Mass. App. Ct. 901 , 901-902 (2014), quoting Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655 , 657-58 (2011). See generally Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385 , 392-397 (2007). Accordingly, the Covenant is governed by G. L. c. 184, §26, and is unlimited as to time. [Note 9]

As a party to the Covenant as either an original covenantor or successors to the covenantors, plaintiffs argue they have the right to enforce its terms against the Planning Board as a matter of contract. Plaintiffs insist the covenantors agreed to limit their right to develop additional single family residences on locus on the condition that there would be a cap on the number of future buildable lots. The record indicates that the Planning Board was willing to waive numerous provisions of its rules and regulations on the condition that the 1986 decision be subject to the Covenant. Rather than incorporating all the provisions of the Covenant into its 1986 decision as specific conditions, the record appears to indicate that the Planning Board opted to achieve the same result by entering into the Covenant.

In Gordon v. Robinson Homes, Inc., a bond delivered to the City of Beverly for land improvements in accordance with a definitive subdivision plan "provided that it was 'made for the use and benefit of all persons . . . who may hereafter purchase lots upon any of said plans, and they and each of them, are hereby made obligees hereunder, . . . and they and/or each of them may proceed or sue hereon.'" 342 Mass. 529 , 530 (1961). Although the plaintiff there purchased lots relying on the bond, the Gordon Court held that "private enforcement of the bond by one in the position of the plaintiff is inconsistent with the general purpose of the law as well as with the powers given the planning board." Id. at 531. Considering the purposes of the subdivision control law, the Court recognized "a legislative intent that the planning boards were to have the primary responsibility for administering the subdivision control law and thus safeguard the declared paramount interests of the community as a whole." Id. at 532. Accord Marlborough Sav. Bank v. City of Marlborough, 45 Mass. App. Ct. 250 , 253 (1998).

Other cases concerning the duty of a planning board to enforce a condition of approval have reached similar results. See e.g. Fox Gate LLC v. Town of Millbury, 19 LCR 585 , 591 (Dec. 1, 2011) (09 MISC 395474 & 09 MISC 402987) (Grossman, J.) aff'd 83 Mass. App. Ct. 1124 (2013); McGowan v. Sears, 3 LCR 24 , 25 (Jan.31, 1995) (MISC 178398) (Scheier, J.) (holding "the Subdivision Control Law . . . gives planning boards the authority to impose conditions on the construction of subdivisions. . . The statute does not require that the town enforce such conditions, however.") (emphasis added). Plaintiffs have been unable to offer any authority to support either of their contentions that they have the right to enforce the Covenant or to pursue a breach of contract action.

The law is well-settled that an ANR "endorsement does not purport to declare that any of the lots depicted are 'buildable.'" Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 395 (2000). Accord Valcourt v. Zoning Bd. Of Appeals of Swansea, 48 Mass. App. Ct. 124 (1999); Stefanick, 39 Mass.App.Ct. at 418; Cricones v. Planning Bd. Of Dracut, 39 Mass. App. Ct. 264 (1995); Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 (1981). The duty of a planning board under §§ 81 L and 81P is "ministerial in character." Gates, 48 Mass. App. Ct. at 395. A planning board may endorse a plan under §81P even if it shows a zoning violation. See Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 604 (1980). Neither plaintiffs nor T&K challenge this well-established line of authority.

Nevertheless, plaintiffs maintain that the Planning Board should have refused to endorse the 2016 plan for purportedly violating the terms of the Covenant. For authority, plaintiffs cite Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386 (1993). In Hamilton, the planning board endorsed an ANR plan that contained a note stating "[t]his subdivision is limited to five (5) lots unless a new plan is submitted to the . . . Planning Board which meets their full standards and approval." Years later, the owners of one of the five lots presented to the planning board an ANR plan dividing one of the lots into two. The planning board endorsed this subsequent plan, thus exceeding the five lot maximum set in the prior plan. The building inspector declined to issue a building permit for the vacant lot shown on the later plan. The Hamilton court observed that

"[w]hat might be an adequate access road or waste disposal system for five lots is not necessarily adequate for seven or ten. For that reason a planning board may limit the number of lots in a subdivision . . . Under G. L. c. 41, §81W, a person having a cognizable interest may petition the planning board for modification of an approved subdivision plan . . . The provisions built into §81T and 81W, which are designed to protect purchasers of lots in a subdivision and the larger public, would be altogether- and easily-subverted if an approved plan could be altered by the simple expedient of procuring a §81P 'approval not required' endorsement."

Id. at 388-389.

For the purposes of this particular action, Hamilton is of little help to plaintiffs. Considering the limited statutory review it has under §81P, the Planning Board acted within its authority to endorse the 2016 plan.

As discussed above, the Planning Board endorsed certain ANR plans presented by plaintiffs or their predecessors to create lots beyond the limit set in the Covenant. Plaintiffs are correct, however, that some of the lots were designed as "not buildable" or "for conservation purposes," and I accept their argument that such designations preserving such lots in an undeveloped condition did not violate the intent and purpose of the Covenant. Similarly if the intent of the covenantors was to limit the number of houses on locus, there is no violation of that goal so long as the four undeveloped lots shown on the 2016 plan remain vacant.

At such time T&K seeks one or more building permits for the vacant lots shown on the 2016 plan, the issue of the limitations set forth in the Covenant could come into play. As stated by the Hamilton court, "[r]estrictions in an approved subdivision plan are binding on a building inspector." Id. at 389. "In order to further divide any lot in a subdivision limited by such a condition [limiting the number of lots], there must be a modification of the original approval pursuant to Mass. Gen. L. ch. 41, § 81W." Bobrowski, Massachusetts Land Use and Planning Law §15.03[G][3], at 535 (3d ed. 2011). citing Hamilton, at 388-390.


For the reasons stated herein, plaintiffs' motion for judgment on the pleadings is DENIED, and T&K's motion for judgment on the pleadings is ALLOWED. Plaintiffs have failed to show a reasonable likelihood that they have suffered injury to a protected legal right by the Planning Board endorsement of the 2016 plan. Judgment shall enter dismissing the complaint with prejudice. [Note 10]


[Note 1] The parties filed on July 3, 2017, Stipulation of Partial Dismissal of Ralph W. Pausig and Lorna R. M. Pausig as Plaintiffs.

[Note 2] At a hearing held on October 7, 2016, T&K assented to the motion to amend. The Planning Board neither participated in this hearing nor filed an opposition to the motion to amend. The court (Scheier, J.) allowed the motion to amend and permitted the amended complaint to be treated as verified. Plaintiffs waived the necessity for the Planning Board and T&K to answer the amended complaint.

[Note 3] The Planning Board submitted a set of corrected minutes on October 13, 2017, replacing pages 28-32 of ROP with pages marked "Supp. 28-35."

[Note 4] By leave of court, the parties were permitted to submit exhibits relative to plaintiffs' standing and three affidavits limited to particular issues. T&K objects to my consideration of the two affidavits given by the drafters of the Covenant. In reaching the decision here, I did not consider those affidavits, nor did I consider the affidavit of the professional engineer submitted by T&K.

[Note 5] This matter was transferred to me on June 27, 2018, with the assent of the parties. I have read the parties' submissions and have listened to the oral argument held on November 14, 2017.

[Note 6] The Covenant was duly recorded at the Plymouth Registry of Deeds in book 6852, at page 63 on June 13, 1986.

[Note 7] Although notes on the 1994 plan reference combining of PCL. C and PCL. D with adjoining non-locus land, no such note appears concerning PCL. B. The parcels depicted on the 1994 plan differ from the description in paragraph 18 of the complaint. The discrepancies do not materially affect the outcome of this decision.

[Note 8] As indicated above, the 2016 plan is a further subdivision of Lots 4A-6 and 4A-7 shown on the 2007 into five lots. Lots 4A-6 and 4A-7 were created as a subdivision of Lot 4A-5 depicted on the 2007 plan. Lots 4A-5 and 4A-4 came into existence as a result of the 2000 plan that divided Lot 4A-1, one of the four original lots that formed locus in 1986.

[Note 9] Plaintiffs also claim the Covenant falls under G. L. c. 184, § 32, in that attached to it was a four-page Conservation Restriction. Although recorded with the Covenant, the Conservation Restriction was unsigned, undated, and without the necessary governmental approvals set forth in G. L. c. 184, § 32.

[Note 10] Based upon the allowance of T&K's motion for judgment on the pleadings, the motion for summary judgment is moot.